Whitley v. U.S.

• Decision Date: 26 March 1999
• Docket Number: No. 97-8886,97-8886
• Parties: 12 Fla. L. Weekly Fed. C 639 Frank WHITLEY, Geraldine Whitley, as Parents of Michael M. Whitley, Deceased, Frank Whitley, as Administrator of the Estate of Michael W. Whitley, Deceased, Plaintiffs- Appellees, Cross-Appellants. v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1061

170 F.3d 1061

12 Fla. L. Weekly Fed. C 639

Frank WHITLEY, Geraldine Whitley, as Parents of Michael M.

Whitley, Deceased, Frank Whitley, as Administrator

of the Estate of Michael W. Whitley,

Deceased, Plaintiffs- Appellees, Cross-Appellants. v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

No. 97-8886.

United States Court of Appeals, Eleventh Circuit.

March 26, 1999.

Jane Wilcox Swift, Amy Weil, Asst. U.S. Attorneys, Atlanta, GA, Lowell V. Sturgill, Robert S. Greenspan, U.S. Department of Justice, Civil Div., Appellate Staff, Washington, D.C., for Defendant-Appellant, Cross-Appellee.

J. Sherrod Taylor, Columbus, GA, Tyron Elliott, Elliott Law Firm, Manchester, GA, for Plaintiffs-Appellees, Cross-Appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE ^*, Senior District Judge.

BIRCH, Circuit Judge:

This appeal requires us to determine whether Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precludes recovery under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, to the parents and estate of a foreign serviceman, who died in a motor vehicle accident while in the United States for a recreational event because of the negligence of an American military service member. Following a nonjury trial, the district judge determined that Feres did not prevent recovery under the FTCA. Because we have determined that the circumstances under which the accident occurred were not incident to military service, we affirm.

I. BACKGROUND

The 1993 United States Military National Championship Rugby Tournament ("Tournament") was played at Fort Benning, Georgia, a United States Army ("Army") reservation, for the purpose of determining the best rugby teams in the United States military. The Columbus-Fort Benning Rugby Football Club ("Columbus-Fort Benning Club"), a private rugby organization, hosted the Tournament to raise funds for the club. To generate interest in the Tournament, the Columbus-Fort Benning Club invited the Duke of Wellington's Regimental Rugby Team ("DWRRT") to play an exhibition match against all-stars from the collective military teams participating in the Tournament as well as matches with civilian teams to prepare for the exhibition match. The DWRRT was not to compete in the military Tournament.

Lieutenant Colonel David Santa-Olalla, Battalion Commander of the Duke of Wellington's Regiment ("DWR"), accepted the invitation for the DWRRT because he thought that a break from active duty and a foreign tour would reward the rugby players' commitment to their team. The trip was not officially sanctioned or approved by the British Army. ¹ The DWR considered the United States trip for its rugby team to be for a recreational rather than a military purpose.

Participation in the trip to the United States by the DWRRT was voluntary for those rugby players who desired to participate. ² When an insufficient number of DWRRT members volunteered, the Halifax Rugby Club, a private British rugby club, was invited to participate. Consequently, two members of the DWRRT for the tour only were civilian rugby players from the Halifax Rugby Club. The trip was financed from private sources: the players contributed one-third; the team raised one-third; and the Regimental Council ³ contributed one-third from non-military funds.

Lieutenant Colonel Santa-Olalla requested assistance from the Columbus-Fort Benning Club in transporting the DWRRT players. The Columbus-Fort Benning Club responded that it could not provide transportation. Lieutenant Colonel Santa-Olalla then contacted the Fort Benning British Liaison Officer, Lieutenant Colonel Black, concerning transportation arrangements for the DWRRT players.

Through Lieutenant Colonel Black's efforts, two minivans were leased from a local rental agency to transport the DWRRT. ⁴ Army regulations, however, required that Army personnel drive the vans and prevented members of the DWRRT from driving them. Accordingly, Lieutenant Colonel Black went through the proper military channels to obtain drivers. With the approval and support of the Battalion Commander, Lieutenant Colonel Leon, Lieutenant Colonel Black acquired three Army enlisted men to drive the vans: Specialists Curry, Patrick, and Kanney. ⁵ These enlisted men were advised that they were to drive the British rugby team wherever it needed to go and not to drink and drive. Specifically, Specialist Kanney's commanding officer testified that he "briefed [Kanney] on his responsibility and my expectations of his conduct; and I also issued a lawful order not to drive and drink." ⁶ R13-597.

The Army drivers remained on duty status, as opposed to leave, while they were assigned to provide transportation to the DWRRT. Nevertheless, they were excused from attending the formations of their units while they were driving the British rugby team. The drivers decided among themselves who would drive which van. ⁷ They were not instructed regarding the chain of command of the rugby players or told that they were attached to a British unit. The drivers did not know the ranks of the military members of the DWRRT because the rugby players traveled in civilian clothes and referred to each other by first names.

On April 26, 1993, the DWRRT arrived at the Atlanta Airport. The Army drivers, accompanied by Lieutenant Colonel Black, another British officer stationed at Fort Benning, and the civilian president of the Columbus-Fort Benning Club met the British rugby team at the airport. Lieutenant Colonel Black briefed the DWRRT at the airport. He explained that Fort Benning had provided the vans and drivers. He also cautioned that the vans were leased by the Army and that members of the British rugby team could not drive them. After instructing the military drivers, Lieutenant Colonel Black told the DWRRT to take care of the drivers. The British rugby players considered this instruction to be a request to feed the Army drivers and to make them feel comfortable with the DWRRT.

The DWRRT players instructed the Army drivers when to take them to a destination but gave the drivers no other instructions concerning their duties. On April 28, 1993, the British rugby team told the Army drivers to drive them from Fort Benning to Atlanta to play a rugby match against the Atlanta High Country Rugby Team, a private civilian team. Other than the three Army drivers, no Americans accompanied the DWRRT to Atlanta to play this rugby match.

Following a British victory, the Army drivers took the DWRRT to the Grandstand Bar in Atlanta, where the High Country Rugby Team had provided a buffet dinner and beer for the British players. Socializing after playing a rugby match is an inherent part of the event for rugby teams and clubs; it is known as "the third half." R5-60-11. Major Mark Lodge, the DWRRT team manager and senior officer in charge of necessary arrangements, decided that one van would leave Atlanta for the return trip to Fort Benning at 11:00 P.M., and that the other van would remain and return later with DWRRT members who wanted to stay longer in Atlanta for further socializing. The Army drivers decided that Specialist Curry, accompanied by Specialist Patrick, would drive the van that departed at 11:00 P.M. ⁸ Specialist Kanney agreed to drive the later van, scheduled to depart at 4:00 A.M.

Specialists Curry and Patrick remained in the vans, rested, and had nothing to drink while the DWRRT players were in the Grandstand Bar. Nevertheless, following the 11:00 P.M. departure, Specialist Curry testified that he "was dozing off," would not have stayed awake, and could have had an accident were it not for Specialist Patrick's "tapping" him and "telling [him] to stay up." R12-492. In contrast, Specialist Kanney joined the DWRRT at the bar. On at least one occasion, a British player gave Specialist Kanney a beer. Additionally, a number of the British rugby players saw Specialist Kanney drinking beer at the bar.

When Captain Faithfull of the DWRRT noticed Specialist Kanney drinking beer, he questioned his ability to drive back to Fort Benning at 4:00 A.M. Specialist Kanney responded that he would be all right. A British corporal also questioned Specialist Kanney's drinking and asked if he realized that he was driving them back. Specialist Kanney said that he was having only one beer. One of the civilian members of the DWRRT, Jason Tozer, observed Specialist Kanney drinking a beer at 10:00 or 10:30 P.M. There is no evidence that Tozer or the decedent, Lieutenant Michael Whitley, saw Specialist Kanney after 11:00 P.M. Specialist Kanney did not appear to be intoxicated when Specialist Curry talked with him prior to the 11:00 P.M. departure of the first van.

At 4:00 A.M. on the morning of April 29, 1993, Specialist Kanney was instructed to get the second van for the return trip to Fort Benning. He drove the van to the bar, and the remaining members of the DWRRT boarded. Neither Specialist Kanney's demeanor nor his speech indicated that he was intoxicated, although he admitted consuming a quantity of beer during the course of the evening. ⁹

All of the members of the DWRRT had consumed large quantities of alcohol; they immediately fell asleep as the van left Atlanta for Fort Benning. As he departed from Atlanta, Specialist Kanney lost his way. He stopped at a convenience store to ask directions and walked past a Georgia State Trooper as he went into the store to obtain directions. Apparently, he was able to walk well enough that the trooper did not suspect that Specialist Kanney was intoxicated.

While driving south on Interstate 85 in Coweta County, outside of Newnan, Georgia, Specialist Kanney also fell asleep. When the van veered from the shoulder on the left of the highway, Specialist Kanney awoke and suddenly turned the van back onto the highway, which caused it to go out of control. The van slid...